MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI

Name – Sakshi Salunke (2017043)

Semester X

1) Explain the procedure to be followed for filing a complaint against an

Advocate.

Lawyers these days are very corrupt, and money minded because of which they
are involved in duping their clients and extorting money from them by charging
hefty fees and delaying in proceedings and in many other ways, like not being
present on the date of the hearing of the case. So, seeing to the needs and legal
rights of the people in the country there are respective provisions under the bar
council as well as the state council for the punishment for any violation of the
rules and rights of the people so for the benefit of the society at large. People
can file complaints against such lawyers under the following authorities:

STATE BAR COUNCIL - An individual can file a complaint against a lawyer

in the following manner as the law varies from state to state in an initial manner
under the state bar council. As law varies from state to state where we have
explained the state bar council of Delhi rules that govern such complaints:

Step 1 - A complaint against a lawyer must be in the form of a plant which shall
specify the complete details of the lawyer (against whom the complaint is made)
such as the name, address, phone number, enrolment number of the advocate
and any other detail that shall be required by the procedure of the state council
with a colour photograph of the person complaining on the front page of all 35
copies. After which the 35 copies including the original plaint after verification
by the complainant by signing every copy on the last page is to be submitted.
Step 2 - In the Plaint, the petitioner is also required to mention his personal
details such as the Name, phone number, email-id of the person in case the
authorities want to contact the person lodging the complaint.

Step 3 - The plaint is to be written either in Hindi or English or any other

regional language of the state as directed by the Bar Council of India to the state
authority. If the plaint is written in any regional language, then it should be
submitted with the copy of its translation in English in the Bar Council of India.

Step 4 - The authorities require the plaint to contain an affidavit on a non-

judicial stamp paper of Rs 10/- which is required to be attested by the Oath
commissioner or the Notary, to support the complaint.

Step 5 - The individual is also required to pay 500 rupees or more, depending
upon the State where the case is filed as the complaint fee to the board with the
plaint.

Step 6 - After the completion of all the above-mentioned procedures, the

complaint will be considered in the meeting of the Disciplinary Committee of
the State Bar Association and a notice will be served to the petitioner regarding
the complaint and its further proceedings.

Step 7 - After that, the committee discusses amongst itself to understand,

whether the complaint is required to be investigated as there are many people
who file such complaints about wrong reasons. The committee then investigates
into the matter and if it finds out that the lawyer is guilty of any such illegal or
wrongful act then the Disciplinary committee of the State Bar Council chooses a
particular date to hear the matter and serves a notice to both the parties to be
present on the date of the hearing in the presence of the Advocate-General of
the State.

Proviso - If any party is absent on the hearing date then the courts have a policy
to pass an exparte decree (it states that if either of the party is absent on the date
of hearing of the case then the judge has the power to pass the decree in favour
of the party present which is also called as Ex parte decree) and if both the
parties are absent then the complaint will be rejected after which the petitioner
will have to file a fresh complaint.

Step 8 - These proceedings are understood as Judicial Proceedings because of

which section 193 and 228 of the Indian Penal code will be applicable to govern
them. Similarly, the court where the proceedings will take place is regarded as
the civil court, for which the Criminal Procedure will be applicable such as
section 480, 482, and 485.

2) Case- Re: Vinay Chandra Mishra AIR 1995 SC 2348.

In this case an advocate was found guilty of criminal contempt of Court, and he
was sentenced to undergo simple imprisonment for a period of six years and
suspended from practising as an advocate for a period of three years. The
punishment of imprisonment was suspended for a period of four years and was
to be activated in case of his conviction for any other offence of contempt of
Court within the said period. The Court held that the license of an advocate to
practice legal profession may be suspended or cancelled by the Supreme Court
or High Court in the exercise of the contempt jurisdiction. It was laid down that
the Supreme Court can take cognizance of the contempt of High Court. Being
the Court of record the Supreme Court has the power to punish for the contempt
of the courts subordinate to it. Thus, the Supreme Court is fully competent to
take cognizance of the contempt of the High Courts or courts subordinate to it.
It was also claimed that the Judge before whom the contempt has been
committed should be excluded. This claim was not sustainable in the view of
the Court. It observed further that its contempt jurisdiction under Article 129 of
the Constitution cannot be restricted or taken away by a statute, be it the
Advocates Act, 1961 or the Contempt of Courts Act, 1971. The Court has also
observed that the contempt jurisdiction of the superior Court's is not based on
the statutory provisions, but it is inherent jurisdiction available to them on
account of being a court of record. As regards the procedure to be followed the
Court has observed that the Courts of record can deal with summarily with all
types of contempt. With regards to Article 142 of the Constitution the Court
observed that the jurisdiction and powers of the Supreme Court which are
supplementary in nature and are provided to do complete justice in any manner,
are independent of the jurisdiction and powers of the Supreme Court under
Article 129 which cannot be trammelled in any manner by any statutory
provision including any provisions of the Advocates Act, 1961 or the Contempt
of Courts Act, 1971. The Advocates Act, 1961 has nothing to do with the
contempt jurisdiction of the Court, and the Contempt of Courts Act, 1971 being
a statute cannot denude the, restrict or limit the powers of this Court to act for
contempt under Article 129. The Supreme Court also held that it being appellate
authority under Section 38 of the Advocates Act, 1961 can impose punishment
mentioned in Section 35 of the said Act. Thus, the Supreme Court may suspend
or cancel the license of an advocate to practice his profession for contempt of
Court. It finally said that the threat of immediate punishment is the most
effective deterrent against the misconduct. They emphasized that the time factor
was crucial and dragging the contempt proceedings means a lengthy
interruption to the main proceedings which paralyzed the Court for a long time.
This case was overruled by Supreme Court Bar Association v. Union of India
and Another.